One Woman’s Losing Struggle for Medical Malpractice Relief

Too many medical malpractice attorneys are turning away too many righteous cases because they’re not allowed to play on a level legal field. The result is that people victimized by serious medical errors suffer twice, once in the medical facility and the second time by the law.

A story recently published in the Insurance Journal told the story of Jennifer Eastman, who was admitted to a South Dakota hospital in 2013 to have a dead fetus removed from her uterus. Her loss and anguish were bad enough, but they would get worse, thanks to state law that deters legitimate claims like hers.

In the recovery room after her procedure, Eastman went into shock, and a doctor who examined her failed to notice that the doctor who removed the fetus had perforated her uterus. She was bleeding to death, and not until a nurse notice something was wrong was Eastman rushed back to the operating room for emergency surgery to remove her uterus.

Her dream of having a large family ended, she claimed, because of a medical error. She wanted justice, but couldn’t find a lawyer to take her case.

South Dakota caps noneconomic damages in medical malpractice cases at $500,000. The law passed in 1976 and has no provision for increases due to inflation. If it did, the cap would be more than $2 million today.

We recently blogged about California’s ballot measure last election to address the same statutory medical malpractices limitations. The measure failed, largely due to obscene amounts of medical money poured into a campaign filled with misleading, scary advertisements.

Because lawyers generally accept medical malpractice cases on contingency – meaning they are paid only if they win, from a percentage of the judgment or settlement – they can’t afford to spend the enormous amount of time it takes to try such a case unless they are reasonably assured of winning enough to make a living.

The costs of bringing malpractice cases have become enormous, as the Insurance Journal pointed out. “The cost of each case can run into the hundreds of thousands in time and expert witnesses. And in some cases, insurance companies can swoop in and take money from an award, leaving less for the victim and lawyer.”

So in South Dakota, and other states, providing justice doesn’t pencil out, and many deserving clients won’t get any. Steve Johnson, a top plaintiff lawyer in South Dakota, told the Insurance Journal that he has decided to stop taking medical malpractice cases partly because of the cap on noneconomic damages.

“The cap is a negative in terms of being able to adequately represent people in this particular area,” Johnson said. “It simply is.”

But plenty of people on the other side raise the tired – and demonstrably inaccurate – argument that the cap is necessary to maintain a strong health-care system. Dr. Mary Milroy, president of the South Dakota State Medical Association, still believes that the cap deters frivolous lawsuits despite overwhelming evidence that there are very, very few of those, and that doctors, as she claimed, don’t live in fear of being sued.

“If people judge South Dakota as a dangerous place with no caps, they may not come here to practice,” she told the Insurance Journal.

We’ve heard that before. But in Texas, for example, provider numbers have not diminished despite a draconian damage cap plus other laws that abrogate harmed patients’ rights.

Out of 100 people who have been harmed by medical mistakes, only two or three ever attempt to seek compensation. Still, about 30 states have laws that restrict what plaintiffs can recover in noneconomic losses, which include judgments for pain and suffering, emotional distress, loss of companionship and other injuries without specific dollar amounts.

That means that people with the worst injuries – brain damage, disfigurement – can’t be compensated commensurate with their suffering, Nora Freemana Engstron, a professor at Stanford Law School, told the Insurance Journal.

So lawyers who might want to represent them have to play the percentages. If potential clients don’t have large losses not subject to the cap (such as lost wages), they often can’t take the case. Engstrom said that disproportionately hurts people who are impoverished, including women, children and the elderly, regardless of the merit of their claim.

John Hughes, a South Dakota lawyer who gets more than 100 malpractice case inquiries every year, takes only two or three. He said one consequence of the cap on noneconomic losses is that many of medical error victims end up on Social Security disability, Medicare and other taxpayer-funded programs because they couldn’t access the justice system.

“The public ends up subsidizing the health care industry and their insurance companies,” the Insurance Journal said in summarizing Hughes’ explanation.

“We have the public subsidizing negligence,” Hughes told the magazine said. “I don’t understand a system that works that way. That is not a just society that allows anybody to externalize their negligence.”

The cap effectively creates a privileged class of people and institutions that aren’t held to the same standard for negligence. South Dakota’s cap applies not only to doctors, but to dentists, chiropractors, nurses, dental assistants, nurse midwives, as well as other specialties and their corporate employers.

So people like Eastman are left bereft on many levels. “It’s the justice part that I want,” she said. “I want validation, and I can’t get that.”

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